Prenuptial Agreement:

You don’t know a woman, until you have met her in court – Norman Mailer

A fair amount of couples are opting for a prenuptial agreement these days before they take the plunge. A prenuptial agreement or prenup ‘is entered between two individuals who are about to get married, outlining the state of their finances and personal liabilities in case the marriage fails.’

Prenuptial agreements are considered as valid legal documents in several countries. However, it is not recognized in India, as marriage in India is not considered to be a contract. Marriage is instead  considered to be a sanctimonious and religious bond between husband and wife.

Women and Child Development Minister, Maneka Gandhi has wanted to legalise prenups since a long time. In fact, it has been in the agenda ever since Marriage Law (Amendment) Bill, was introduced in 2013. A well drafted prenuptial agreement can be 50-60 pages containing various provisions covering aspects such as division of property, spousal support, guardianship rights. It can also contain specific provisions that the husband and wife want to mutually include. For example, setting up of upper limit for alimony, properties that are excluded from division, infidelity clause etc.

There is something inherently poignant when two individuals agree to stick to each other for the rest of their lives, be it arranged marriage or love marriage, when they vow to be together during the best and the worst times, so much so that it is ascribed a sacred status. However, this is not enough to turn a blind eye towards a possible change of events in the future that could result in failure of marriage. It is important to bring in certain amount of practicality as prenups helps both parties have clarity in the event that the marriage turns sour.

Advantages of Prenuptial Agreement: 

Prenuptial Agreement would save a lot of court’s time by cutting short legal battles during the course of divorce. It would also ensure support to both husband and wife and share in the assets that they are entitled to, without having to go through expensive and complicated legal battles. There are a lot of other benefits like:

• It allows couples to set their own terms as divorce laws are quite indefinite. Therefore, in the absence of an agreement such as prenup, a tremendous amount of discretion is given to a judge in cases of divorce.

• Prenup could help one to override laws and keep ones finances separate and decide on what properties will be divided among the two.

For a prenup to be successful, both parties should agree to participate and be completely honest about their individual assets and liabilities. As long as the two stick to the terms, prenup agreement can be used as the basis on which the judge gives his decision. However, if one party decides to fight it out, then the agreement holds no good.

Legal Status of Prenuptial Agreement:

Prenuptial agreement is neither valid nor legal under the Indian Contract Act. This is because marriage is not considered to be a contract in India, and any agreement against public policy shall be void under Section 23 of Indian Contract Act. However, since judges can interpret an agreement in different ways, prenup can be presented in the court as long as it is made in a legally prescribed format, duly signed by both parties voluntarily, notarized along with having two witnesses.

In fact, V.P.Sarthi, a divorce lawyer at VPS lawfirm, Coimbatore says that ‘even though prenups are not legal, it depends on the creativity of a lawyer to make a case out of it.’ He says, for instance, ‘if a party breaks a prenuptial agreement made on stamped and notarized paper, it becomes fraud, which is a ground for divorce.’ Besides, majority of the couples these days elect prenups knowing it has no legal backing in order to make their spouse feel morally obligated and in order to get clarity on various aspects.

In a country like India, where practice of dowry is still pervasive, prenuptial agreement has a long way to go before it is legalised. Recently, the Union Ministry for Women and Child Development called for a discussion with legal experts and other stakeholders on the possibility of bringing a law that legitimizes pacts between spouses. However, discussions need to be held in order to come to a resolution on the link between religion and marriage before an agreement of this sort is given legal sanctity.

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